Justice Scalia, Ordinary Meanings, and Legal Meanings

Mike Ramsey, Ilya Somin, and now Tim Sandefur have been having a debate over whether the original meaning of the Constitution should be interpreted in accordance with the meaning as understood by the ordinary public or by people with legal knowledge. I may have more to say about this next week, but for now I want to note a significant issue.

Under the original methods originalism position that John McGinnis and I defend in Originalism and the Good Constitution, the Constitution should be interpreted in accordance with the interpretive rules that would have been deemed applicable to it at the time of its enactment. Since the Constitution is a legal document, we believe these interpretive rules are those that would have been applied to a legal document. These legal interpretive rules would sometimes require that the ordinary meaning apply rather than a more technical meaning, but they would often require legally informed meanings and understandings to be employed.

It might seem that Justice Scalia supports the ordinary public side of this issue. In DC v. Heller, Justice Scalia wrote that:

In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).

Thus, Scalia seems to side with the view that legal meanings are not followed. But Scalia seems on weak ground here. First, Sprague is a 20th century case, which is no evidence of the original meaning, and Gibbons does not really support him.

Second, Scalia himself has regularly relied on the legal meanings of terms in the Constitution. For example, in Crawford v. Washington, one of Scalia’s premier originalist opinions concerning the Confrontation Clause, he quotes with approval that

the “right … to be confronted with the witnesses against him,” Amdt. 6, is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding. . . . As the English authorities above reveal, the common law in 1791 conditioned admissibility of an absent witness’s examination on unavailability and a prior opportunity to cross-examine. The Sixth Amendment therefore incorporates those limitations.

The common law is the legal meaning. One cannot assume that the general public understood that meaning and therefore Scalia here seems to be contradicting his methodological statement in Heller.

In Giles v. California, another originalist Confrontation Clause opinion written by Scalia, Scalia does it again. The issue is whether a witness who is rendered unavailable to testify by the defendant can have his testimony excluded based on the Confrontation Clause. Scalia writes that

the manner in which the [common law] rule was applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying. In cases where the evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying—as in the typical murder case involving accusatorial statements by the victim—the testimony was excluded.

Once again, the content of the Confrontation Clause turns on technical questions under the common law – knowledge that the ordinary public would not have know. I am confident that I could produce numerous other examples of Justice Scalia interpreting texts in accordance with technical legal meanings.

Perhaps Justice Scalia is just being inconsistent. But there is another possibility. Perhaps when he says that the Constitution’s “words and phrases were used in their normal and ordinary as distinguished from technical meaning,” he does not mean to exclude legal meanings. Perhaps he had “hypertechnical constructions” in mind.

But Justice Scalia’s statement in Heller is curious and, given this other evidence, is only used problematically as evidence against legal meanings.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013. Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

Comments

funny, you should mention that as I am currently involved in a technical hearing wherein the opposing party seeks to establish as a “standard” rule of the construction the transformation of the conjunctive “and” into the disjunctive variant. Thus, “and” becomes “or” as suits the particular party’s bias.

Perhaps, Scalia may be referring to a general bias toward common or “populist” construction EXCEPT where context, etc. requires the specialized constructions arising out of common law decisions.

Mike, I find this posting interesting in that you are addressing “Ordinary Meanings, and Legal Meanings”., and prefacing that w/Justice Scalia. You have taken this whole piece to tell the reader of the “curiousity” that “this other evidence is only used problematically as evidence against legal meanings.” I will leave your judgment of Scalia – to yourself. Curiosity also killed the cat. In this particular posting – you are — the cat”. How do you make a posting of this caliber without judging your own past “Ordinary Meanings, and Legal Meanings”. I need only to refer to all of the back and forth postings, between ourselves, on your issue of the requirement of — “incorporation” of the “free exercise of religion” into the l4th amendment.
Is “incorporation” an Ordinary Meaning, or a Constitutionally enumerated Legal Meaning?
Respectfully, John
(Facebook, author of The Tribute)

by Glenn A. MootsYou wouldn’t know it from Tripadvisor, but the small coastal town of Newburyport, Massachusetts holds a unique attraction drawing thousands of visitors—in the last two years they’ve hailed from 41…

Recent Posts

Why Homer Matters is the best book about literature I have read in decades. Significantly, its author, Adam Nicolson, is not a tenured professor at some famous university or even an independent classical scholar. And this difference shows, all to the benefit of the reader. An accomplished sailor, Nicolson has endured gales and felt theRead Moreby John O. McGinnis

Podcast: Play in new window | Download (Duration: 52:17 — 47.9MB) Peter Schuck comes to Liberty Law Talk to discuss Why Government Fails So Often. Like James Buckley and John DiIulio, Schuck doesn’t have much good news for the large majority of Americans who are disgusted with the performance of the federal government and itsRead Moreby Peter H. Schuck

In Citizens Divided: Campaign Finance Reform and the Constitution, Robert C. Post, the dean of Yale Law School, makes it his task to “elaborate a constitutional framework in which First Amendment doctrine and campaign finance reform can be connected to each other in a coherent and theoretically satisfactory manner.” Despite its title, Citizens Divided isRead Moreby Bradley A. Smith

In My Fair Lady (based on George Bernard Shaw’s Pygmalion), Professor Higgins asks why can’t a woman be more like a man? But these days, the sentiments underlying that question are more likely to be reversed. In this article, a 50 year old woman laments the behavior of men. There seems to be a genderRead Moreby Mike Rappaport

I am a faithful subscriber to the Washington Post: morning after morning, it makes for merriment. Its editorial and op-ed pages, for instance, have been given over for weeks to the regurgitation of ACA defenses cranked up in New Haven or in the PR offices of the country’s health care lobbies (interspersed with an occasionalRead Moreby Michael S. Greve

Archives

About

The Online Library of Law and Liberty’s focus is on the content, status, and development of law in the context of republican and limited government and the ways that liberty and law and law and liberty mutually reinforce the other. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law and Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.